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Entries in ADA
(37)

Most business owners are aware that if their business is public-facing they need to provide access for the physically disabled under the Americans with Disabilities Act. By definition, Title III under the ADA provides that individuals cannot be discriminated against on the basis of disability, “in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of accommodation by any person who owns, leases, leases to or operates a place of public accommodation.” While classically this includes what we would typically think of as public-facing businesses, such as movie theaters, restaurants, bowling alleys, and hospitals, it does also include private businesses, like doctors’ offices, accounting firms, and even non-profits.

Jacob Abilt (not his real name) was a covert employee for the CIA until his employment was terminated in October 2011. After his termination Abilt argued that despite having informed the CIA he had been diagnosed with narcolepsy, he was terminated as a result. The facts are limited, as the court noted: “Many of the basic facts regarding Abilt’s employment with the Agency are classified, as are the job responsibilities and even the identities of most of his former supervisors and co-workers.” What was made public is that as an accommodation, Abilt requested that he be permitted to take periodic naps; a request which his then-supervisor granted. Abilt, however, was then assigned to temporary duty yonder (TDY) overseas in a warzone. He accordingly was assigned a new supervisor.

On Thursday, January 19, 2017, the Eighth Circuit issued an opinion in Guenther v. Griffin Constr. Co., 16-1760 (8th Cir. Jan. 19, 2017), and held that a claim for compensatory damages brought under the Americans with Disabilities Act (ADA) survives the death of the aggrieved party. The case involved an employee who was terminated from Griffin Construction in 2008 after overseeing construction projects for four (4) years. He claimed that he was terminated as a result of his diagnosis with cancer.

The former employee filed a charge of discrimination with the EEOC, but died before the administrative process was complete. The EEOC issued a right-to-sue letter, having found reasonable cause, and the administrator of the estate filed suit under the Arkansas Civil Rights Act as well as Title I of the ADA. Griffin Construction moved to dismiss (arguing the claims did not survive death) and the district court agreed, finding the ADA claim abated at death and entered judgment on the pleadings for Griffin Construction.

There are things we all need to know about Zika: 1) it is spread mostly by an infected Aedes species mosquito; 2) it can be passed from a pregnant woman to her fetus; 3) there is no vaccine or medicine for Zika; and 4) confirmed cases of the Zika virus have been identified in the United States. While there are a whole host of things we still need to learn about the virus, there are a number of things you as an employer need to be mindful of when it comes to this virus

Oftentimes clients ask, “When we think an employee is high, can we fire him?” My answer is consistently the same, “That depends.” It depends on a whole host of factors, what state do you live in, what industry do you work in, why do you think he’s high, but most importantly, what is your risk tolerance?

In at-will states (of which many are), an employer can terminate an employee for any reason as long as it is not in violation of a law. The problem is, the list of laws which protect employees continues to become longer and longer. Employee protections related to the use of controlled substances is no exception. We see the ADA, state marijuana laws, OSHA, state drug testing laws, and other fair employment practices laws consistently affecting the marijuana in the workplace analysis.

Yesterday, the Eighth Circuit issued an opinion in Morriss v. BNSF Railway Co., No. 14-3858 (April 5, 2016), rejecting the plaintiff’s argument that obesity (in and of itself) is sufficient to maintain an ADA claim. The Eighth Circuit joins the Sixth Circuit and the Second Circuit in coming to this conclusion.

Melvin Morriss filed suit alleging that BNSF Railway Company refused to hire him on account of his obesity, and thereby discriminated against him in violation of the ADAAA and the Nebraska Fair Employment Practice Act. The action alleged both disability discrimination and “regarded as” discrimination.